State v. Hendrick

• Decision Date: 09 November 1903
• Citation: 56 A. 247,70 N.J.L. 41
• Parties: STATE v. HENDRICK et al.
• Court: New Jersey Supreme Court

56 A. 247

70 N.J.L. 41

STATE

v. HENDRICK et al.

Supreme Court of New Jersey.

Nov. 9, 1903.

(Syllabus by the Court.)

Error to Court of Quarter Sessions, Monmouth County.

Charles C. Hendrick and Samuel Stanton were convicted of conspiracy, and bring error. Reversed.

Argued June term, 1903, before GUMMERE, C. J., and DIXON, PITNEY, and HENDRICKSON, JJ.

Aaron E. Johnston, Frank P. McDermott, Joseph M. Noonan, and Zisgen & Pendergast, for plaintiffs in error.

John E. Foster, for the State.

HENDRICKSON, J. This writ brings up for review the conviction of Charles C. Hendrick and Samuel Stanton in the Monmouth quarter sessions upon an indictment for conspiracy. The two were jointly indicted with one Laura Biggar. The indictment is in two counts, and charges, in substance, that the three persons named unlawfully conspired and agreed together, by certain false and fraudulent proceedings in the orphans' court of said county, to nullify, set aside, and make void and of no effect the last will of Henry M. Bennett, late of said county, who died on April 11, 1902, with intent to defraud the several legatees therein named; that in the execution of said conspiracy they presented or caused to be presented in said court a sworn petition of said Laura Biggar, by the name of Laura Bennett, setting forth that on January 2, 1898, she was lawfully married to said Henry M. Bennett, and that as a result of the marriage a male child was born to the petitioner on July 30, 1902; that the child died August 13th following; and that the child was not named or provided for in said last will. The indictment further charges that in furtherance of said conspiracy the persons so accused did falsely and corruptly cause and procure the said Samuel Stanton, who was a justice of the peace, to falsely and corruptly testify under oath before said court that he solemnized the alleged marriage in the city of Hoboken, and made out and delivered to the said Laura Biggar a certificate of the marriage, and did in like manner cause and procure said Stanton and Hendrick to be sworn before said court in support of said false and corrupt conspiracy and agreement, etc. As a result of the trial of the indictment, the defendants Hendrick and Stanton were found guilty by the jury, but as to Laura Biggar the record shows that no verdict was rendered.

Among a number of errors assigned for reversal, there is one based upon the admission by the trial judge of the testimony of three or more witnesses purporting to show acts of criminal intimacy on a number of occasions between Laura Biggar and certain men named by the witnesses, but who had no connection whatever with the alleged conspiracy. These acts of criminal intimacy were designated as having occurred at various places in this and other states, and at different times during the period subsequent to the supposed marriage. The record shows that the evidence referred to was objected to by counsel of the defendants, and that the several objections were overruled by the trial court, and exception allowed and sealed thereon. But it also reveals the fact that in each case the ground of the objection was not stated. Ordinarily such an omission is fatal to an exception, in that it cannot be considered by the court on review by writ of error. Donnelly v. State, 26 N. J. Law, 463; Associates of Jersey Co. v. Davison, 29 N. J. Law, 415; Mooney v. Peck, 49 N. J. Law, 232, 12 Atl. 177; Oliphant v. Brearley, 54 N. J. Law, 521, 24 Atl. 660; N. J. Zinc Co. v. Lehigh Zinc Co., 59 N. J. Law, 189, 35 Atl. 915. The effect of such an omission may be obviated where the plaintiff in error elects to take up the entire record with his writ of error, and pursues the practice pointed out in sections 136 and 137 of the criminal procedure act, revised in 1898 (P. L. p. 915).

The briefs of counsel seem to assume that the entire record is here under that act. But such is not the fact. The writ of error is in the ordinary form, and fails to command the certifying to the court of the entire record of the proceedings had upon the trial; nor does the return show any certificate of the trial judge that the return embraces such entire record. A substantial compliance with the practice here suggested is manifestly necessary to give effect to the requirements of the statute in question. This practice was recognized in Roesel v. State, 62 N. J. Law, 216-240, 41 Atl. 408.

We have found, however, in another part of the record, that the admissibility of the evidence objected to was under consideration by the trial Judge. Laura Biggar was being cross-examined by counsel for the state, and was asked as to her having occupied the same bed on different occasions with the men alluded to. These questions were admitted over the objection of counsel for defendants, and were answered in the negative by the witness. During this cross examination, and while an objection was pending, the following colloquy occurred between counsel for the state and the court: "We propose, in order that there should not be any confusion, to produce one or more witnesses who will swear to having seen this woman in that condition. The Court: 1 think the evidence is competent, and will admit it." After an exception by defendant to the pending question was noted, the court added, "Yes; all that goes in, subject to your exception to all this line of testimony." This was a plain declaration by the court to counsel of the defendants that the evidence of the proffered witnesses on that subject-matter was competent, and would be admitted when they should be called, subject to an exception. This cures the defect in the exceptions before pointed out. And the defendants were entitled to the benefit of this ruling when the testimony of the several witnesses on this line was offered, without repeating the ground of objection at each offer. 8 Enc. of Pl. & Pr. 229, and cases cited; 1 Thomp. on Trials, 705. An objection, however, to evidence, that it is incompetent, is so...